New York Law School

Art Leonard Observations

Posts Tagged ‘gay marriage’

N.Y. Appellate Division Upholds Vacating Adoption by Father’s New Boyfriend on Petition by Father’s Husband

Posted on: October 3rd, 2017 by Art Leonard No Comments

On September 28, 2017, a unanimous five-judge panel of the N.Y. Appellate Division, First Department, held that New York County Family Court Judge Stewart H. Weinstein had properly granted a motion by Han Ming T., the husband of Marco D., to vacate a May 2016 order that had granted an adoption petition by Carlos A., Marco’s boyfriend, to adopt a child conceived through gestational surrogacy using Marco’s sperm at a time when Marco and Han Ming were subsequently deemed to be married.  Ming, who had initiated a divorce proceeding in Florida in which he sought joint custody of the child, then unaware that the adoption petition had been filed in New York, showed that he was entitled to notice of the adoption petition and respect for his parental rights.  Carlos and Marco had failed to inform the Family Court that the status of the child in question was implicated in an ongoing divorce proceeding, so that court had originally granted the adoption unaware that there was a legal impediment as the consent of Ming was lacking. In re Maria-Irene D., 2017 N.Y. App. Div. LEXIS 6713, 2017 WL 4287334, 2017 N.Y. Slip Op 06716.

Marco and Ming, who are both British citizens, entered a formal civil partnership in the U.K. in 2008, which they converted into a legal marriage in 2015. Under British law, their marriage was treated as retroactive to the date of their civil partnership.  Between those two dates they had relocated to the U.S., living in Florida.  In 2013 they undertook to have a child through gestational surrogacy, a process by which an egg is extracted from a donor, fertilized in a petri dish, and then implanted in a surrogate.  Both men contributed sperm for several in vitro fertilization attempts; the one that “took,” using Marco’s sperm, was implanted in the surrogate.  This process was carried out in Missouri, where the child, who was named after the mothers of both men, was born in September 2014.  A Missouri court then terminated any parental rights of the egg donor and the surrogate and designated Marco, the genetic father, as having “sole and exclusive custody” of the child.  “Marco, Ming, and the child returned to Florida, where they lived as a family until October 2015, when Ming returned to the UK to seek employment,” wrote the court.

But evidently the relationship of the men was complicated during that time, because, the court reports, “At some point in or after 2013, Marco entered a relationship with petitioner Carlos A., and they moved to New York with the child after Ming went to the U.K.” Carlos petitioned the New York County Family Court to adopt the child in January 2016.  The adoption papers “disclosed that Marco and Ming were married in 2008, but alleged that they had not lived together continuously since 2012 and that Carlos and Marco have been caring for the child since her birth.  A home study report stated that Marco and Ming legally separated in 2014 and had no children together.”  That Ming had participated in the surrogacy process and that Marco, Ming and the child lived together as a family thereafter were not disclosed to the Family Court in the adoption proceeding.   Neither did Carlos and Marco disclose to that court prior to the adoption order being granted that Ming had filed a divorce action in Florida in March 2016, seeking joint custody of the child.

The Family Court granted the adoption in May 2016. When Ming learned of this, he filed a motion in the Family Court to vacate the adoption “on the ground that relevant facts had not been disclosed to the court and that he was entitled to notice of the adoption and an opportunity to be heard since he had parental rights.”  Judge Weinstein granted Ming’s motion and vacated the adoption, finding that Carlos and Marco made “material misrepresentations” to the court and that Ming was entitled to notice of the proceeding.  Weinstein did leave open the possibility that depending how the divorce proceedings were resolved in Florida, Carlos might later renew his petition to adopt the child.  Carlos moved for re-argument, but the motion was denied, and Carlos and Marco appealed.

The Appellate Division found that the Family Court “providently exercised its discretion in vacating the adoption.” Since the Marco-Ming marriage was retroactive to 2008 under U.K. law, it would be recognized as such under New York law as a matter of comity.  Which meant that the child, born in 2014, was a child of the marriage, “giving rise to the presumption that the child is the legitimate child of both Marco and Ming.”  The court noted Ming’s allegation that they lived together as a family in Florida, and that “the couple took affirmative steps in the U.K. to establish Ming’s parental rights in accordance with U.K. law.”  The court doesn’t explain this further.  Perhaps it refers to their subsequent 2015 marriage, which had retroactive effect under U.K. law to 2008, thus establishing Ming’s parental status, regardless of the Missouri judgement awarding Marco sole and exclusive custody.  (One has to factor into the mix that in 2014 same-sex couples could not marry in Missouri and their U.K. legal status as civil partners when the child was born would have no recognition under Missouri law, so naturally a Missouri court at that time would not recognize Ming as having any legal relationship to the child.)

“The prevailing law at the time the adoption petition was granted does not compel a different result,” said the court. As far as this court was concerned, as a matter of New York law according comity to the retroactive effect of their U.K. marriage, “Marco and Ming were deemed legally married when they embarked on the surrogacy process to have a child together.  Accordingly, the child was born in wedlock, and Ming was entitled to notice of the adoption proceeding.  Under the Court of Appeals’ most recent decision concerning parental standing (Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 [2016]), Ming’s claim to have standing as a parent is even stronger.”

The court also found the failure by Carlos and Marco to disclose the Florida divorce proceeding to the Family Court to be “another ground to vacate the adoption,” since an adoption petition requires the petitioner to disclose to the court whether the child is the subject of any other legal proceeding affecting his or her custody or status, and Ming had petitioned for joint custody of the child in the Florida proceeding. Carlos and Marco learned of that proceeding a few months after Carlos’s adoption petition was filed, while that petition was still pending before the Family Court, so they had a duty to bring it to the attention of that court.  Instead, they filed a supplemental affidavit claimed that there had been no change in the child’s circumstances “whatsoever” since the filing of the adoption petition.

Ming is represented by Nina E. Rumbold of Rumbold & Seidelman, LLP (Bronxville). Carlos and Marco are represented by Frederick J. Magovern of Magovern & Sclafani, Mineola.  There is no attorney appointed to represent the child’s interest, a point that Carlos and Marco raised in their appeal but as to which the Appellate Division declined to rule.  The court’s opinion does not report on the current status of Ming’s Florida divorce proceeding.  It is possible that Ming and Marco are still legally married, which perhaps explains why Carlos and Marco are not?

 

Former Texas Supreme Court Chief Justice Seeks Reversal of His Old Court’s Opinion

Posted on: September 25th, 2017 by Art Leonard No Comments

On June 30, the Texas Supreme Court issued a ruling claiming that the U.S. Supreme Court’s Obergefell marriage equality decision from June 2015 did not necessarily require state and local governments to treat same-sex and different-sex marriages the same for government employee benefits purposes. On September 15, asserting that his old court’s decision was clearly wrong, retired Texas Supreme Court Justice Wallace B. Jefferson and lawyers from his Austin firm, Alexander Dubose Jefferson & Townsend LLP, asked the U.S. Supreme Court to reverse the ruling.

Jefferson, an African-American Republican, was appointed to the court in 2001 by Governor Rick Perry, who then elevated him in 2004 to the Chief Justice position, where he served until retirement in October 2013. Justice Jefferson was the first African-American to serve on Texas’s highest court.  His law firm was retained by Houston Mayor Sylvester Turner to represent the City in petitioning the Supreme Court for review.

The case arose in 2013 when then-Mayor Annise Parker, an out lesbian and longtime LGBT rights activist, reacted to the Supreme Court’s decision to strike down the federal Defense of Marriage Act by asking her City Attorney whether the reasoning of that case would require the City of Houston to recognize same-sex marriages of City employees. Although Texas did not allow same-sex marriages then, some City employees had gone out of state to marry and were seeking health care benefits for their spouses under the City’s employee benefits plan.  Parker got the answer she was seeking and ordered an extension of benefits to City employees’ same-sex spouses.

Two local Republican activists, Jack Pidgeon and Larry Hicks, sued the City and Mayor Parker, seeking an injunction against extension of the benefits. They persuaded a state trial judge to issue a preliminary injunction, barring the benefits from going into effect pending the outcome of the litigation.  The court relied on the Texas constitutional and statutory bans on same-sex marriage, which had not yet been challenged in court as of that time.  The City appealed the preliminary injunction.

While the appeal was pending before the Texas Court of Appeals, the U.S. Supreme Court decided the Obergefell case, and the U.S. Court of Appeals for the 5th Circuit, which is based in Houston, promptly affirmed a 2014 marriage equality ruling by the federal district court in San Antonio, DeLeon v. Abbott, declaring unconstitutional the Texas same-sex marriage bans that had been the basis for the trial court’s injunction. Then the Texas Court of Appeals issued a ruling reversing the trial court’s preliminary injunction and instructing that court to decide the case consistent with the DeLeon decision.  Pidgeon and Hicks appealed that ruling to the Texas Supreme Court.

 

After extensively considering the matter, the Texas Supreme Court announced that it would deny review of the Court of Appeals ruling. This outraged Texas Republican leaders, including Governor Abbott, and the state Republican Party went to work encouraging people to bombard the court with communications urging it to reconsider and grant review, and then to reverse the court of appeals.  Perhaps it is not surprising, considering the very political nature of that court, made up entirely of Republican justices (since Texas has not had a Democratic governor since George W. Bush defeated Ann Richards in 1994), that the court succumbed to these demands, reconsidered, and granted review.

On June 26, 2017, the U.S. Supreme Court issued its decision in Pavan v. Smith, a challenge to the refusal by Arkansas officials to list both members of married lesbian couples on birth certificates when one of them gave birth to a child through donor insemination. In that ruling, the Supreme Court made abundantly clear that the Obergefell decision had effectively decided the Pavan case by holding that same-sex couples had the same constitutional rights regarding marriage as different sex couples, extending to the entire “constellation of rights” that went with marriage.  The Supreme Court did not even bother to hold oral argument in the Pavan case, simultaneously granting the petition to review an adverse decision by the Arkansas Supreme Court and issuing a brief memorandum opinion, from which three members of the Court dissented in an argumentative and disingenuous memorandum attributed to recently-appointed Justice Neil Gorsuch and signed by Clarence Thomas and Samuel Alito.  The Pavan opinion left no doubt that same-sex and different-sex married couples must be treated the same by government entities under the 14th Amendment.

But it was evidently not clear to a majority of the Texas Supreme Court, which just days later issued its ruling, reversing the court of appeals and sending the case back to the trial court in Houston, with instructions to give Pidgeon and Hicks an opportunity to try to convince the court that the City of Houston was still required to refuse recognition to the marriages of same-sex couples under its benefits plan, relying on the Texas constitutional and statutory ban that was declared unconstitutional by the 5th Circuit. A majority of the Texas Supreme Court clings to the idea that constitutional rulings by the lower federal courts are not binding on the Texas state courts.    The Texas court suggested that the U.S. Supreme Court’s opinion in Obergefell could be interpreted narrowly to address solely the question whether states must allow same-sex couples to marry and must recognize same-sex marriages contracted from out of state, but that the Obergefell opinion said nothing directly about what rights must be accorded to same-sex married couples.  This is, as Justice Jefferson’s Petition to the Supreme Court makes clear, blatantly untrue.  It treats the Pavan ruling as if Justice Gorsuch’s dissent was speaking for the Court.

Justice Jefferson’s Petition on behalf of Mayor Turner and the City of Houston makes mincemeat out of the work product of his former colleagues, quoting clear language from Obergefell which, among other things, specifically mentioned health insurance as an example of how the denial of marriage to same-sex couples violated their fundamental right to marry and to be treated equally with different-sex couples.

This case is just as clear as Pavan was, and is likely to receive the same treatment from the U.S. Supreme Court, unless that Court finds some procedural or jurisdictional reason to dismiss the Petition without deciding the question presented by the petitioners: “Did the Supreme Court of Texas correctly decide that Obergefell v. Hodges and Pavan v. Smith ‘did not hold that states must provide the same publicly funded benefits to all married persons,’ regardless of whether their marriages are same-sex or opposite-sex?” Some have suggested that because the Texas Supreme Court was ruling only on the validity of a preliminary injunction, the matter is not procedurally ripe for U.S. Supreme Court review, but any attempt to reinstate the preliminary injunction would directly violate the constitutional rights of Houston City employees in clear violation of the Obergefell ruling.

On a parallel track, Lambda Legal filed a federal district court lawsuit in Houston over the summer on behalf of some married LGBT City employees, seeking a declaratory judgment that they are entitled to the same benefits for their spouses that their straight colleagues get. If the Supreme Court does not grant Justice Jefferson’s Petition, it is likely that the matter can be resolved relatively quickly through Lambda’s case, since the City would eagerly comply with an order by the U.S. District Court to provide equal benefits.  This is, at heart, a dispute between the pro-LGBT Houston Democratic city government and the anti-LGBT Republican state government.

 

 

Texas Supreme Court Refuses to Dismiss Challenge to Spousal Benefits for Houston City Employees

Posted on: June 30th, 2017 by Art Leonard No Comments

In a clear misreading of the U.S. Supreme Court’s marriage equality ruling from 2015, Obergefell v. Hodges, especially as elucidated just days ago by that Court in Pavan v. Smith, the Texas Supreme Court unanimously refused on June 30 to dismiss a lawsuit by two disgruntled Houston taxpayers who argue that the city of Houston may not provide employee benefits for the same-sex spouses of its employees. The case is Pidgeon v. Turner, 2017 Tex. LEXIS 654.

Instead, while affirming a ruling by the Texas Court of Appeals that had reversed the preliminary injunction that a Texas trial court issued in 2014 against payment of the benefits, the Texas Supreme Court sent the case back to the trial court for it to decide whether the Obergefell decision obligates Houston to provide equal benefits to same-sex spouses of its employees, and also to consider the taxpayers’ argument that the city should be required to “claw back” the value of benefits that were paid prior to the Obergefell decision, on the theory that Texas’s refusal to recognize same-sex marriages contracted out-of-state was valid until the U.S. Supreme Court ruling was announced.

In Pavan v. Smith, the Arkansas Supreme Court had ruled that the Obergefell decision did not require the state to treat same-sex spouses the same as different-sex spouses for listing as a parent on the birth certificate of a child born to their spouse. Reversing that ruling, the U.S. Supreme Court said: “As we explained [in Obergefell], a State may not ‘exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.’ Indeed, in listing those terms and conditions — the ‘rights, benefits, and responsibilities’ to which same-sex couples, no less than opposite-sex couples, must have access — we expressly identified ‘birth and death certificates.’ That was no accident…”

Thus, the Supreme Court made clear in Pavan, contrary to the Arkansas Supreme Court’s unduly narrow reading of Obergefell, that same-sex couples are entitled to the same rights and benefits of marriage as different-sex couples. In listing some of the rights and benefits of marriage that same-sex couples had wrongly been denied, the Obergefell court specifically mentioned health insurance, an employee benefit that is at issue in the Texas case.  Thus, to claim that the Obergefell opinion fails to deal with this issue explicitly is totally disingenuous.

And yet, Justice Jeffrey S. Boyd wrote for the Texas Supreme Court in Pidgeon v. Turner, “The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons, and – unlike the Fifth Circuit in DeLeon – it did not hold that the Texas DOMAs are unconstitutional.” “DeLeon” refers to the Texas marriage equality decision that was issued by the U.S. Court of Appeals for the 5th Circuit a few days after the Obergefell decision, holding that the Texas ban on same-sex marriage was unconstitutional in light of Obergefell.

Instead of cutting through procedural complications and saving everybody involved lots of wasted time and money through prolonged litigation, the Texas court has now repeated the error of the Arkansas Supreme Court by insisting that the Obergefell ruling does not clearly require “the same” rights, benefits and responsibilities, and, incredibly, cited in support of this point the Supreme Court’s decision on June 26 to grant review of a Colorado Court of Appeals ruling, Masterpiece Cakeshop v. Colorado Human Rights Commission, which concerns a totally different question: whether a baker has a 1st Amendment right to discriminate against a same-sex couple by refusing an order for a wedding cake in violation of a state anti-discrimination law.  The Supreme Court did not address in Obergefell the question of reconciling a potential clash between anti-discrimination laws and the rights of free exercise of religion and freedom of speech enjoyed by non-governmental entities and individuals.  But the Court most emphatically did address the issue that governmental actors, bound by the 14th Amendment, must accord the same rights to all married couples, whether same-sex or different-sex, and it reiterated that point in Pavan.

The Texas case dates back to 2013, when Houston’s Mayor Annise Parker, an out lesbian, reacted to the Supreme Court’s Windsor decision by extending benefits to the same-sex spouses of Houston city employees who had gone out of state to get married. At the time, Texas had both a state Defense of Marriage Act and a similar constitutional amendment, and Houston had a charter provision limiting municipal employee benefits to legal spouses and children of employees.  Relying on an advisory opinion from the city attorney, Parker concluded that after Windsor it was unconstitutional to refuse to recognize those out-of-state marriages.

Jack Pidgeon and Larry Hicks, Houston taxpayers who identified themselves as devout Christians who did not want their tax money going to subsidize same-sex marriages, filed a lawsuit challenging the benefits extension in December 2013, and refiled in October 2014 after the first case was dismissed for “want of prosecution” while the parties were wrangling about the city’s attempt to remove the case to federal court. Pidgeon and Hicks claimed, based on state and city law, that the benefits extension was “expending significant public funds on an illegal activity.”  They persuaded a local trial judge to issue a preliminary injunction against continued payment of the benefits while the case was pending, and the city appealed.

The Texas Court of Appeals sat on the appeal while marriage equality litigation proceeded both in the federal courts in Texas – the DeLeon v. Perry case – and nationally. Shortly after the Supreme Court ruled in Obergefell on June 26, 2015, the 5th Circuit, affirming a federal district court ruling, held in DeLeon that the Texas laws banning same-sex marriage were unconstitutional.

Then the Texas Court of Appeals reversed the trial court’s preliminary injunction in the Pidgeon case and sent the case back to the trial court with instructions to decide the case “consistent with DeLeon.” Pidgeon and Hicks sought to appeal this ruling to the Texas Supreme Court, but were initially turned down by that court.  Then the top Republican elected officials in the state – the governor, lieutenant governor, and attorney general – and a bunch of other non-parties filed papers with the Supreme Court urging it to change its mind and allow the appeal, which the court eventually agreed to do.

In its June 30 ruling, the court buried itself in procedural complications. Based on its incorrect conclusion that the Obergefell decision, as amplified by the Pavan ruling, does not decide the merits of this case, and further giving credence to the plaintiffs’ argument that Obergefell cannot be construed to have any retroactive effect because “the Supreme Court acknowledged that it was attributing a new meaning to the Fourteenth Amendment based on ‘new insights and societal understandings,”  the court opined that Pidgeon and Hicks should have an opportunity to “develop” their argument before the trial court.  This contention on retroactivity is not the view that has been taken by other courts, including some that have retroactively applied Obergefell to find that cohabiting same-sex couples in states that still have a common law marriage doctrine can be held to have been legally married prior to that ruling.  Indeed, the federal government even gave Windsor retroactive application, allowing same-sex couples to file for tax refunds for earlier years on the basis that the Internal Revenue Service’s refusal to recognize their state-law marriages under DOMA had been unconstitutional.

The Texas Supreme Court agreed with Pidgeon that the Texas Court of Appeals should not have directed the trial court to rule “consistent with DeLeon” because, technically, the state trial courts are not bound by constitutional rulings of the federal courts of appeals, only by U.S. Supreme Court rulings on questions of federal law. DeLeon could be a “persuasive” precedent, but not a “binding” precedent.  This merits a big “so what?”  After all, the real question in this case is whether Obergefell requires that married same-sex couples are entitled to the “same benefits” as different-sex couples from their municipal employer, and the answer to that could not be more clear, especially after Pavan v. Smith.  (Indeed, Justice Gorsuch’s dissenting opinion in Pavan repeats the same mistaken assertion — that Obergefell does not clearly require the “same” rights and benefits which the Court responds to by quoting from Obergefell to the opposite effect – and is just as disingenuous as Justice Boyd’s decision for the Texas court.)

Now the case goes back to the trial court in Houston, where the outcome should be dictated by Pavan v. Smith and Obergefell and the court should dismiss this case. But, since this is taking place in Texas, where contempt for federal law is openly expressed by public officials, who knows how it will turn out?

Same-Sex Marriage Looms for Taiwan after Constitutional Court Ruling

Posted on: May 24th, 2017 by Art Leonard No Comments

The Constitutional Court of the Republic of China (Taiwan) voted overwhelmingly that same-sex couples are entitled to marry, and that anti-gay discrimination violates the Republic’s Constitution. The May 24 ruling was greeted with relative equanimity by legislative leaders, who were ordered by the court to approve legislation to implement this decision by May 24, 2019.  Otherwise, the court said, the decision would go into effect automatically, and same-sex couples would be entitled to marry.  Only two justices dissented, and one abstained.  Press reports we saw differed as to whether the court has 14 or 15 members.  Either way, the majority was overwhelming.

This was the first ruling by an Asian high court to accept marriage equality as a constitutional right, although there might be political and ideological arguments about its significance in relation to the rest of Asia due to the unusual status of Taiwan, which the Peoples’ Republic of China (Mainland China) considers to be part of its country that is just temporarily self-governing and most countries do not recognize it as an independent nation. However, there is no disputing that when this ruling goes into effect, Taiwan will be the first place where same-sex marriages can be performed in Asia with the imprimatur of legally-recognized status.

The opinion, formally called Interpretation No. 748, was released only in Chinese, but the court simultaneously issued an English-language press release summarizing the ruling in detail.

The court was responding to petitions from LGBT rights activist Chia-Wei Chi and the Taipei City Government, seeking a definitive ruling on whether the freedom to marry, protected by Article 22 of the Constitution, was limited by the provisions of Chapter 2 on Marriage of Part IV on Family of the Civil Code, which defines marriage as exclusively a different-sex institution. The court also had to confront the question whether excluding same-sex couples from marriage violated the “people’s right to equality” guaranteed in Article 7 of the constitution.

The court found that both constitutional guarantees – the right to marry and the right to equality – were violated by the ban on same-sex marriage.

The court observed that the petitioner, Chia-Wei Chi, has been waging a campaign for same-sex marriage for more than thirty years. Although some progress had been made in getting the legislature to consider the issue, after more than ten years of bills being introduced and debated, nothing has been brought to a vote.  The court expressed concern about the frustration induced by this protracted legislative process.  “The representative body is to enact or revise the relevant laws in due time,” said the court.  “Nevertheless, the timetable for such legislative solution is hardly predictable now and yet these petitions involve the protection of people’s fundamental rights.  It is the constitutional duty of this Court to render a binding judicial decision, in time, on issues concerning the safeguarding of constitutional basic values such as the protection of peoples’ constitutional rights and the free democratic constitutional order.”

The court said that the freedom to marry extends both to deciding whether to marry and whom to marry. “Such decisional autonomy is vital to the sound development of personality and safeguarding of human dignity, and therefore is a fundamental right.”  The court insisted that allowing same-sex couples to marry “will not affect the application of the Marriage Chapter to the union of two persons of the opposite sex” and that it would not “alter the social order established upon the existing opposite-sex marriage.”  The court said that the failure of current law to allow same-sex couples to marry “is obviously a gross legislative flaw” and that the current provisions “are incompatible with the spirit and meaning of the freedom of marriage as protected by Article 22 of the Constitution.”

Moving to the equality issue, the court addressed the problem that Article 7, unlike the United States’ equal protection clause, explicitly requires equality “irrespective of sex, religion, class, or party affiliation,” but the court did not see this list as a barrier to protecting equality for gay people (or, it added, people with disabilities). They said that the classifications listed in Article 7 “are only exemplified, neither enumerated nor exhausted.”  In other words, this is a list of “including but not limited to” classifications, and the court saw sexual orientation as a classification governed by the same equality principle.

“Sexual orientation is an immutable characteristic that is resistant to change,” wrote the court. “The contributing factors to sexual orientation may include physical and psychological elements, living experience, and the social environment.  Major medical associations have stated that homosexuality is not a disease.  In our country, homosexuals were once denied by social tradition and custom in the past.  As a result, they have long been locked in the closet and suffered various forms of de facto or de jure exclusion or discrimination.  Besides, homosexuals, because of the demographic structure, have been a discrete and insular minority in the society.  Impacted by stereotypes, they have been among those lacking political power for a long time, unable to overturn their legally disadvantaged status through ordinary democratic process.  Accordingly, in determining the constitutionality of different treatment based on sexual orientation, a heightened standard shall be applied.”  This appears to be the equivalent of the U.S. legal concept of a “suspect classification,” one deemed illegitimate in the absence of good justification.

The court rejected any idea that reproductive capacity has anything to do with the freedom to marry, pointing out that different-sex couples may marry even if they are incapable of procreation or unwilling to engage in procreative activities. “Disallowing two persons of the same sex to marry, for the sake of their inability to reproduce, is a different treatment having no apparent rational basis,” wrote the court.  It also rejected the kind of moralistic arguments that are raised by marriage equality opponents, concluding, “Disallowing two persons of the same sex to marry, for the sake of safeguarding basic ethical orders, is a different treatment, also obviously having no rational basis.  Such different treatment is incompatible with the spirit and meaning of the right to equality as protected by Article 7 of the Constitution.”

While the court gave the government two years to make the necessary legislative adjustments to carry out this ruling, it warned that failure to do so would not prevent the decision from going into effect. Upon the two-year anniversary, if not sooner, same-sex couples will be entitled to apply for marriage registration to the usual authorities and to “be accorded the status of a legally recognized couple, and then enjoy the rights and bear the obligations arising on couples.”

Without being able to read and understand the original Chinese text, it is hard to assess whether the ruling leaves much leeway to the legislature to consider alternatives to true marriage equality. In Europe, for example, the Court of Human Rights has been willing to allow countries to adopt registered partnerships or civil unions rather than extending explicit marriage rights to same-sex couples, although that is likely to change as the number of countries having voluntarily legislated for marriage equality has grown to encompass several of the largest countries who are parties to the European Convention on Human Rights.  However, the clear import of the English summary is that same-sex marriages would have to include all the usual legal rights accompanying opposite-sex marriages to meet the equality test the court embraced, in a more explicit way than the U.S. Supreme Court did in Obergefell v. Hodges in 2015.

The local English-language press in Taiwan reported that none of the major parties responded with opposition to the ruling, which was quickly embraced by Premier Lin Chuan, who “ordered Chen Mei-ling, secretary-general of the Executive Yuan, to coordinate the Ministry of Justice, Ministry of Interior and other branches to draft the revision proposal,” according to Cabinet spokesman Hsu Kuo-yung. The cabinet will approve a proposal to submit to the legislature. The two options that seem available are a bill amending existing laws to accommodate same-sex marriages, or a separate same-sex marriage bill.  In terms of timing, it seems possible that marriage equality will go into effect sooner than two years.  Although the current legislative session ends by May 31, the legislature will reconvene for some special sessions during July and August and will resume its regular session thereafter.

No, Donald Trump Can’t Repeal Marriage Equality

Posted on: November 11th, 2016 by Art Leonard No Comments

Some panicky LGBT people have been calling the LGBT legal and political organizations to ask whether they should accelerate their wedding plans to marry before Donald Trump takes office, and many are expressing concern that the marriage equality victory, won in the Supreme Court on June 26, 2015, after so much hard work and heartache, is now in danger of being reversed, and that their own same-sex marriages might become invalid.

 

Although nobody can predict the future with absolute certainty, it is highly unlikely that the marriage equality decision will be reversed, and it is an absolute certainty that Trump as president will not have the authority to reverse it on his own or even with the connivance of Congress.  Furthermore, there is good legal authority to conclude that a valid marriage, once contracted, can only be ended by a divorce or by the death of one of the spouses, not by executive fiat or legislative action.

 

The Supreme Court ruled in Obergefell v. Hodges, voting 5-4, that same-sex couples have a right to marry as part of the liberty guaranteed under the 14th Amendment of the Constitution, bolstered by the constitutional guarantee of equal protection of the laws.  A ruling on a constitutional right by the U.S. Supreme Court can only be changed in one of two ways: a constitutional amendment, or an overruling by the Supreme Court in a later case.  Once a case is decided and the Court sends its mandate out to the lower court from which the case was appealed, the losing party can file a petition seeking a rehearing, but such a petition has to be filed quickly and the Court almost always denies them.  We are now 18 months out from the Obergefell ruling.  It is final, done, no longer open to reconsideration by the Court.  And the President has no power to “repeal” or “overrule” it by himself.  Neither does Congress.

 

During the campaign, Donald Trump did not threaten to try to repeal or reverse the ruling on his own. He said he thought the question of marriage should have been left to the states, so he disagreed with the Court’s decision, and he said he would consider appointing new justices to the Supreme Court who would vote to overrule it.

 

Trump can’t appoint a new justice to the Court until there is a vacancy.  There is one now, due to the death of Justice Antonin Scalia last winter and the refusal by the Senate to consider President Obama’s nomination of Judge Merrick Garland of the D.C. Circuit Court of Appeals to replace him.  But Justice Scalia dissented in the Obergefell case, so replacing him with a conservative judge would not change the outcome.  The five-member majority in Obergefell – Justices Anthony Kennedy (who wrote the Court’s opinion), Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan – are all still there.  And there is no case now pending before the Court that would provide a vehicle for overruling Obergefell v. Hodges.  And any marriage equality opponent thinking strategically would be waiting until one of those majority justices leaves before attempting to launch a legal challenge.

 

What about the constitutional amendment route?  That is not going to happen.  Trump’s election doesn’t affect that at all, since the President plays no role in amending the Constitution.  Article V makes it so difficult to pass an amendment that our 240-year-old Constitution has picked up only 27 amendments, ten of them being the Bill of Rights adopted in 1791, and the most recent one, adopted in 1992, a quarter century ago, requiring that any pay raise that Congress votes for itself cannot go into effect until after the next House of Representatives election.  In order to propose a new amendment, at least 2/3 of each house of Congress has to approve it, and then it has to be ratified by at least ¾ of the states.  Alternatively, 2/3 of the states can apply to Congress to call a Constitutional Convention for the purpose of proposing amendments, but any amendments proposed would still require ratification by ¾ of the states.

 

By the time the Supreme Court decided Obergefell in 2015, popular opinion polls showed that a clear majority of the public supported marriage equality, and that margin of support only increases over time, as polling in the early marriage equality states such as Massachusetts has shown.  Amendments to the Constitution can only pass with overwhelming public support.  There is no overwhelming public support to abolish same-sex marriage.  That effort is now the province mainly of far-right-wing cranks and religious fanatics.  And as long as the Democrats hold more than 1/3 of the seats in the Senate, it is highly unlikely that a Marriage Amendment would get the necessary 2/3 vote in that chamber.  Indeed, the Democrats hold enough seats in that House, in combination with some more moderate Republicans, to block it in that chamber as well.  So, marriage equality opponents, forget about passing a Marriage Amendment.

 

The alternative, of course, is for opponents to set up a lawsuit raising the question and to get it to the Supreme Court after Trump (or a successor) has had an opportunity to appoint somebody to replace a member of the Obergefell majority.   That majority includes the three oldest members of the Court, Ginsburg, Kennedy and Breyer, so it is possible Trump will have that opportunity before the end of a four-year term.   Even then, however, an overruling is highly unlikely.

 

First, a case presenting the question has to come to the Court, and the issue of marriage equality has to be central to that case.  The Court may be presented over the next few years with cases that involving marriage equality in some way.  They already have a petition to review the Colorado marriage cake case, presenting the claim that a baker’s 1st Amendment rights are violated by fining him under a state anti-discrimination law for refusing to make a wedding cake for a gay couple, but I’m not sure such a case, even if the Supreme Court decided to hear it, would provide a vehicle for overruling Obergefell.  More likely, a challenge would come from some state deciding to provoke a lawsuit by denying equal treatment for some benefit to a married same-sex couples. But it’s not enough just to petition the Court, because the Court has complete discretion about whether to accept a case for review, and it takes four Justices to grant such a petition.  By the time they get such a petition AFTER a change of membership has reduced the Obergefell majority, perhaps several years from now, same-sex marriage will be such a settled issue, with so many tens of thousands of same-sex couples married throughout the country, that it seems highly unlikely that even four members of the Court would be motivated to reopen the issue.

 

Furthermore, the Court normally embraces a concept called “stare decisis,” a Latin term meaning standing by what has been decided.  They are very reluctant to overrule themselves, especially when a decision has been embraced by society and incorporated into the everyday lives of many people.  When they do overrule a prior decision, it is usually in the direction of realizing that the old decision wrongly denied a constitutional claim or adopted an incorrect and harmful interpretation of a statute.   The Court resists attempts to get it to cut back rights that it previously recognized.

 

In the course of litigating about LGBT rights, the Court has twice overruled past decisions.  In 2003, the Court overruled Bowers v. Hardwick (1986) when it decided that the constitution protected people engaged in consensual gay sex from criminal prosecution, in Lawrence v. Texas (2003).  Indeed, the Court said that Bowers was wrong when it was decided.  The second time, it overruled Baker v. Nelson (1972) when it held that same-sex couples have a right to marry.  Baker, however, was a one-sentence decision stating that the issue of same-sex marriage did not present a “substantial federal question.”  In both cases, overruling involved a determination that the prior case had wrongly failed to recognize a constitutional right, so the new decision marked an expansion of liberty and equality. The Court is unlikely to overrule a case in order to contract liberty or deny equality.

 

As to the validity of existing same-sex marriages, when Californians passed Proposition 8 in 2008 after several thousand same-sex couples had married in that state, the California Supreme Court ruled that although Prop 8 was validly enacted, it could not retroactively “un-marry” all those couples.  Their marriages would continue to be valid and recognized by the state.  It is unlikely that the U.S. Supreme Court would take a different position regarding existing same-sex marriages if it were to overrule Obergefell.  That would raise daunting due process and equal protection questions.

 

Trump’s taking office does not present a direct and present threat to marriage equality.  It does present many other threats, including the loss of pro-LGBT executive orders and the likely abandonment by federal agencies of the position that sex discrimination laws protect LGBT people from discrimination because of their sexual orientation or gender identity.  But those are other issues….

Arizona Appeals Court Adopts Gender-Neutral Construction of Paternity Statute in Same-Sex Couple Dispute

Posted on: October 14th, 2016 by Art Leonard No Comments

The Court of Appeals of Arizona ruled on October 11 that as a result of the U.S. Supreme Court’s ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), holding that same-sex couples have a constitutional right to marry and that their marriages must receive equal treatment under the law to those of different-sex couples, the Arizona courts must construe the state’s paternity statute in a gender neutral way so that the same-sex spouse of a woman who gives birth enjoys the presumption of parental status. McLaughlin v. Jones, 2016 Ariz. App. LEXIS 256, 2016 WL 5929205 (Oct. 11, 2016).  Judge Philip Espinosa wrote for the unanimous three-judge panel.

Kimberly and Suzan were legally married in California in October 2008, shortly before voters approved Proposition 8, which enshrined a different-sex only marriage definition in the state constitution. Shortly thereafter, however, the California Supreme Court ruled that same-sex marriages contracted before the passage of Prop 8 remained valid under California law.  “The couple agreed to have a child through artificial insemination,” wrote Judge Espinosa, “using an anonymous sperm donor selected from a sperm bank.”  Suzan’s efforts to conceive this way were unsuccessful, but Kimberly became pregnant in 2010. Before their child was born, the women moved to Arizona, a state that did not then recognize their marriage or allow second-parent adoptions.

The women made a joint parenting agreement and executed mirror-image wills, declaring “they were to be equal parents of the child Kimberly was carrying,” wrote the court. After their son was born in June 2011, Suzan was the stay-at-home mom while Kimberly resumed her work as a physician.  The women’s relationship deteriorated, however, and when their son was almost two years old, Kimberly moved out of their home, taking the child with her and cutting off his contact with Suzan.

In April 2013, Suzan filed a petition for dissolution of the marriage and a petition for a court order recognizing her parental status in various ways, most significantly decision-making and parenting time. The matter came before Superior Court Judge Lori Jones in Pima County, who decided to stay the proceedings while marriage equality litigation was pending.  In January 2016, six months after the Supreme Court decided Obergefell, Kimberly moved to set the case for trial and Judge Jones ordered briefing concerning “the issue whether the case was a dissolution proceeding with or without children in view of the presumption of paternity under an Arizona statute, Section 25-814(A).  In an April 7, 2016, ruling, Judge Jones found that it would violate Suzan’s 14th Amendment rights not to afford her the same presumption of parenthood that a husband would enjoy.  Thus, she ordered, the case should proceed as a “dissolution action with children.”

Kimberly then moved for a declaratory judgment about whether she would be permitted to introduce evidence to rebut the presumption. On May 2, Judge Jones ruled that Kimberly would not be permitted to attempt to rebut the presumption that Suzan was a parent of their son.  Jones found that there was nothing for Kimberly to rebut, adding that a “family presumption applies to same sex and opposite sex non-biological spouses married to a spouse who conceived a child during the marriage via artificial insemination.”  She relied on Section 25-501, a support statute which is applicable when a child is born as a result of donor insemination, finding that this “necessarily gives rise to parental rights in the non-biological spouse.”  Kimberly appealed this ruling.

On appeal, Kimberly argued that as the child’s biological mother, “she is, by definition, the only parent and therefore the only person who has parental rights, which are fundamental rights,” wrote Judge Espinosa, summarizing Kimberly’s argument. She contended that Judge Jones erroneously construed the paternity statute to encompass same-sex lesbian couples.  Suzan, in response, argued that because of Obergefell, parentage statutes “must be applied and interpreted in a gender-neutral manner so that same-sex couples’ fundamental marital rights are not restricted and they are afforded the same benefits of marriage as heterosexual couples and on the same terms,” wrote Espinosa.

The Arizona statute defining “legal parents” includes “biological” or “adoptive” parents, and “does not include a person whose paternity has not been established pursuant to Section 25-812 [acknowledgment of paternity] or Section 25-814 [presumptions of paternity].” The court found that Section 25-814(A)(1) applies to the McLaughlin case, assuming one applies a gender-neutral interpretation of the statutory language.  This provides that “a man is presumed to be the father of the child if 1. He and the mother of the child were married at any time in the ten months immediately preceding the birth.”

Judge Espinosa wrote, “Enacted well before the Supreme Court decided Obergefell, this statute was written with gender-specific language at a time when the marriage referred to in subsection (A)(1) could only be between a man and a woman.” While accepting Kimberly’s argument that Judge Jones should not have relied on the child support statute to determine Suzan’s status, the court rejected Kimberly’s argument that “it would be impossible and absurd to apply Section 25-841(A)(1) in a gender-neutral manner to give rise to presumption parenthood in Suzan.  Indeed, Obergefell mandates that we do so,” he continued, “and the plain language of the statute, as well as the purpose and policy behind it, are not in conflict with that application.”  Not to do that would deprive same-sex married couples of the same “terms and conditions of marriage” as are enjoyed by different-sex couples, which would be a clear violation of the Supreme Court’s mandate of equal treatment in Obergefell.

“The word ‘paternity’ therefore signifies more than biologically established paternity,” wrote Espinosa. “It encompasses the notion of parenthood, including parenthood voluntarily established without regard to biology.”  He pointed out that the long-established purpose of paternity statutes is “to provide financial support for the child of the natural parent.”  The marital presumption “is intended to assure that two parents will be required to provide support for a child born during the marriage” and serves the additional purpose “or preserving the family unit.”  For these propositions, the court relied on the Massachusetts Supreme Judicial Court’s ruling in Partanen v. Gallagher, decided just days earlier.  The court rejected Kimberly’s argument that there was any reason to treat men and women differently in this regard, after Obergefell.

As to Kimberly’s request to be able to rebut the presumption of parenthood, the court held that it “need not decide how the rebuttal provision in Section 25-814(C) applies in a same-sex marriage because we determine Kimberly is estopped from rebutting the presumption.  Equitable estoppel applies when a party engages in acts inconsistent with a position later adopted and the other party justifiably relies on those acts, resulting in an injury.”

In this case, it was uncontested that the women were lawfully married when Kimberly became pregnant as a result of a donor insemination process upon which both women agreed.  It is not disputed that their son was born during the marriage.  It is not disputed that Suzan was the stay-at-home mom and cared for their son until Kimberly “left the home with him.”  Furthermore, the women had made a written parenting agreement providing that they were to be equal parents of the child.  In that agreement, Kimberly agreed to “waive any constitutional, federal or state law that provide her with a greater right to custody and visitation than that enjoyed by Suzan.”  They even provided in the agreement that if their relationship broke down, Suzan would continue to enjoy parenting rights, and that if second-parent adoption became available in the jurisdiction where they lived, Suzan would adopt the child.  Since their partnership broke up before Obergefell was decided, however, Suzan never had an opportunity to adopt their son.

The court concluded that based on these uncontested facts, the doctrine of equitable estoppel applied, barring Kimberly from attempting to rebut the presumption that Suzan is a parent to their son.  “Suzan is the only parent other than Kimberly,” wrote Judge Espinosa, “and having two parents to love and support [their son] is in his best interest.  Under these circumstances, Kimberly is estopped from rebutting the presumption of parenthood pursuant to Section 25-814(C).”

Consequently, Kimberly’s appeal was denied, and the case will continue before Judge Jones as a dissolution with a child.  It will be up to Judge Jones in the first instance to determine whether it is in the best interest of the child to order Kimberly to allow Suzan to have a continuing relationship, including parenting time and decision-making authority.

Kimberly is represented by Keith Berkshire and Megan Lankford, Phoenix.  Suzan is represented by Campbell Law Group, Phoenix, and attorneys from the National Center for Lesbian Rights, San Francisco.  Appointed counsel for the child included law students and supervising faculty from various clinical programs, including the Family and Juvenile Law Certificate Program in Tucson, and Child and Family Law Clinic in Tucson, the Community Law Group, Tucson, and the Child and Family Law Clinic at the University of Arizona Rogers College of Law.

 

 

Federal Court Blocks Implementation Mississippi HB 1523

Posted on: July 1st, 2016 by Art Leonard No Comments

 Just minutes before Mississippi’s anti-LGBT H.B. 1523 was scheduled to go into effect on July 1, U.S. District Judge Carlton W. Reeves filed a 60-page opinion explaining why he was granting a preliminary injunction to the plaintiffs in two cases challenging the measure, which he consolidated for this purpose under the name of Barber v. Bryant.

 

                According to Judge Reeves, H.B. 1523 violates both the 1st Amendment’s Establishment of Religion Clause and the 14th Amendment’s Equal Protection Clause.  His lengthy, scholarly opinion expands upon some of the points he made just days earlier when he granted a preliminary injunction in a separate lawsuit, blocking implementation of one provision of H.B. 1523 that allowed local officials responsible for issuing marriage licenses to “recuse” themselves from issuing licenses to same-sex couples based on their “sincere” religious beliefs.

 

                Unlike the earlier ruling, the June 30 opinion treats H.B. 1523 as broadly unconstitutional on its face.  Although Mississippi Governor Phil Bryant, the lead defendant in all three lawsuits, announced that the state would immediately appeal to the U.S. Court of Appeals for the 5th Circuit, Reeves’ scholarly opinion seemed likely to withstand judicial review.  Attorney General Jim Hood, Mississippi’s only Democratic statewide elected official and also a named defendant, suggested that he might not be joining in such an appeal, voicing agreement with Reeves’ decision and suggesting that the legislature had “duped” the public by passing an unnecessary bill.  He pointed out that the 1st Amendment already protected clergy from any adverse consequences of refusing to perform same-sex marriages, and that the state’s previously-enacted Religious Freedom Restoration Act already provides substantial protection for the free exercise rights of Mississippians.

 

                At the heart of H.B. 1523 is its Section 2, which spells out three “sincerely held religious beliefs or moral convictions” that are entitled, as found by Judge Reeves, to “special legal protection.”  These are “(a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at birth.”  According to the statute, any person or entity that holds one or more of these beliefs is entitled to be free from any sanction by the government for acting upon them by, for example, denying restroom access to a transgender person or refusing to provide goods or services to a same-sex couple for their wedding.

 

                Of course, the state may not override federal rights and protections, and the plaintiffs argue in these cases that by privileging people whose religious beliefs contradict the federal constitutional and statutory rights of LGBT people, the state of Mississippi has violated its obligation under the 1st Amendment to preserve strict neutrality concerning religion and its obligation under the 14th amendment to afford “equal protection of the law” to LGBT people.

 

                Reeves, who ruled in 2014 that Mississippi’s ban on same-sex marriage was unconstitutional, agreed with the plaintiffs as to all of their arguments.   For purposes of granting a preliminary injunction, he did not have to reach an ultimate decision on the merits of the plaintiffs’ claims.  It would suffice to show that they are “likely” to prevail on the merits.  But anybody reading Reeves’ strongly-worded opinion would have little doubt about his view of the merits.

 

                In an introductory portion of the opinion, he spells out his conclusions succinctly: “The Establishment Clause is violated because persons who hold contrary religious beliefs are unprotected – the State has put its thumb on the scale to favor some religious beliefs over others.  Showing such favor tells ‘nonadherents that they are outsiders, not full members of the political community, and adherents that they are insiders, favored members of the political community,’” quoting from a Supreme Court decision from 2000, Santa Fe Independent School District v. Doe, 530 U.S. 290.  “And the Equal Protection Clause is violated by H.B. 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons.”

 

                Much of the opinion was devoted to rejecting the state’s arguments that the plaintiffs did not have standing to bring the lawsuits, that the defendants were not liable to suit on these claims, and that injunctive relief was unnecessary because nobody had been injured by the law.  Reeves cut through these arguments with ease.  A major Supreme Court precedent backing up his decision on these points is Romer v. Evans, the 1996 case in which LGBT rights groups won a preliminary injunction against Colorado government officials to prevent Amendment 2 from going into effect.  Amendment 2 was a ballot initiative passed by Colorado voters in 1992 that prevented the state from providing any protection against discrimination for gay people.  The state courts found that the LGBT rights groups could challenge its constitutionality, and it never did go into effect, because the Supreme Court ultimately found that it violated the Equal Protection Clause.

 

                Judge Reeves ended his introductory section with a quote from the Romer v. Evans opinion:  “It is not within our constitutional tradition to enact laws of this sort.”

 

                In his earlier opinion, dealing with the clerk “recusal” provision, Reeves had alluded to Mississippi’s resistance to the Supreme Court’s racial integration rulings from the 1950s and 1960s, and he did so at greater length in this opinion, focusing on how H.B. 1523 was specifically intended by the legislature as a response to the Supreme Court’s ruling last year in Obergefell v. Hodges, holding that same-sex couples have a constitutional right to marry.  Mississippi legislators made clear during the consideration of this bill that its intention was to allow government officials and private businesses to discriminate against LGBT people without suffering any adverse consequences, just as the state had earlier sought to empower white citizens of Mississippi to preserve their segregated way of life despite the Supreme Court’s rejection of race discrimination under the 14th Amendment.

 

                Reeves quoted comments by Governor Bryant criticizing Obergefell as having “usurped” the state’s “right to self-governance” and mandating the state to comply with “federal marriage standards – standards that are out of step with the wishes of many in the United States and that are certainly out of step with the majority of Mississippians.”  In a footnote, Reeves observed, “The Governor’s remarks sounded familiar.  In the mid-1950s, Governor J.P. Coleman said that Brown v. Board of Education ‘represents an unwarranted invasion of the rights and powers of the states.’”  Furthermore, “In 1962, before a joint session of the Mississippi Legislature – and to a ‘hero’s reception’ – Governor Ross Barnett was lauded for invoking states’ rights during the battle to integrate the University of Mississippi.”  Reeves also noted how the racial segregationists in the earlier period had invoked religious beliefs as a basis for failing to comply with the Supreme Court’s decisions.

 

                Turning to the merits of the case, Reeves addressed the state’s argument that the purpose of the statute was to “address the denigration and disfavor religious persons felt in the wake of Obergefell,” and the legislative sponsors presented it as such, as reflected in the bill’s title: “Protecting Freedom of Conscience from Government Discrimination Act.”  Reeves pointed out what was really going on.  “The title, text, and history of H.B. 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell,” he wrote.  “The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions.  LGBT Mississippians, in turn, were ‘put in a solitary class with respect to transactions and relations in both the private and governmental spheres’ to symbolize their second-class status.” (The quotation is from Romer v. Evans.)  “As in Romer, Windsor, and Obergefell,” Reeves continued, “this ‘status-based enactment’ deprived LGBT citizens of equal treatment and equal dignity under the law.”

 

                Because state law in Mississippi does not expressly forbid discrimination because of sexual orientation or gender identity, the state tried to claim that in fact the bill did not have the effect of imposing any new harm.  However, recently the city of Jackson passed an ordinance forbidding such discrimination, and the University of Southern Mississippi also has a non-discrimination policy in place.  “H.B. 1523 would have a chilling effect on Jacksonians and members  of the USM community who seek the protection of their anti-discrimination policies,” wrote Reeves.  “If H.B. 1523 goes into effect, neither the City of Jackson nor USM could discipline or take adverse action against anyone who violated their policies on the basis of a ‘Section 2’ belief.”

 

                The court held that because of the Establishment Clause part of the case, H.B. 1523 was subject to strict scrutiny judicial review, and also pointed out that under Romer v. Evans, anti-LGBT discrimination by the state is unconstitutional unless there is some rational  justification for it.  He rejected the state’s argument that it had a compelling interest to confer special rights upon religious objectors.  “Under the guise of providing additional protection for religious exercise,” he wrote, H.B. 1523 “creates a vehicle for state-sanctioned discrimination on the basis of sexual orientation and gender identity.  It is not rationally related to a legitimate end.”  Indeed, he asserted, “The deprivation of equal protection of the laws is H.B. 1523’s very essence.”

 

                Reeves easily found that the standard for ordering preliminary relief had been met.  Not only was it likely that H.B. 1523 would be found unconstitutional in an ultimate ruling in the case, but it was clear that it imposed irreparable harm on LGBT citizens, that a balancing of harms favored the plaintiffs over the defendants, and that the public interest would be served by enjoining operation of H.B. 1523 while the lawsuits continue.  “The State argues that the public interest is served by enforcing its democratically adopted laws,” he wrote.  “The government certainly has a powerful interest in enforcing its laws.  That interest, though, yields when a particular law violates the Constitution.  In such situations the public interest is not disserved by an injunction preventing its implementation.”

 

                Reeves concluded, “Religious freedom was one of the building blocks of this great nation, and after the nation was torn apart, the guarantee of equal protection under law was used to stitch it back together.  But H.B. 1523 does not honor that tradition of religious freedom, nor does it respect the equal dignity of all of Mississippi’s citizens.  It must be enjoined.”

 

Mississippi Defies the 1st Amendment with “Freedom of Conscience” Law

Posted on: April 8th, 2016 by Art Leonard No Comments

On April 5 Mississippi Governor Phil Bryant signed into law H.B. 1523, a measure that received overwhelming approval in both houses of the state legislature.  Titled the “Protecting Freedom of Conscience From Government Discrimination Act,” the law was clearly intended to encourage businesses and individuals in the state to discriminate against same-sex couples, LGBT people, and even sexually-active unmarried heterosexuals.

Despite the broad wording of its title, the measure does not on its face protect freedom of conscience in general.  Instead, in Section 2, the legislature stated that “the sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that (a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”  The first of these, of course, defies the Supreme Court’s 2015 ruling, Obergefell v. Hodges, that same-sex couples have a constitutional right to marry.  The second defies the 2003 ruling, Lawrence v. Texas, which held that the state may not penalize sexual relations between consenting adults in private, regardless of their sex.  And the third defies the general medical consensus that gender identity is a human characteristic that exists apart from biological sex in terms of anatomy and genetics.

The law does not specify how it will be determined that somebody sincerely holds these beliefs or is merely asserting them opportunistically to avoid liability for mistreating somebody.

In effect, Mississippi has moved to protect from any adverse consequences at the hands of the state anybody who sincerely believes that a person born with a penis can only be considered a man for the rest of their life, and similarly a person born with a vagina can only be considered a woman.  This takes things one step further than North Carolina, which provided in its notorious H.B. 2, enacted in March, that “biological sex” means the sex indicated on a person’s birth certificate.  Since North Carolina will allow people to obtain new birth certificates consistent with their gender identity upon medical certification of surgical transition, that state evidently does not officially believe that sex is quite so “immutable.”

The new law goes on to protect people who act on these beliefs in various ways.  For example, religious organizations and clergy can refuse to have anything to do with same-sex marriages, including refusing to provide facilities or services in connection with same-sex marriage or to married same-sex couples.  Businesses can refuse to provide their goods or services or accommodations to same-sex couples, and can exclude transgender people from the use of single-sex-designated facilities consistent with their gender identity.  Nobody can be subjected to loss of their tax-exempt status or denial of government contracts or benefits because they have these “protected” beliefs.  People who spout anti-LGBT rhetoric will be protected from adverse consequences as well.  They can’t be fired from government jobs for articulating such beliefs, for example.

Government employees whose jobs involve authorizing or licensing marriages can seek “recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction” as defined in the statute, provided they send a written notice of such recusal to the State Registrar of Vital Records. They may not suffer any adverse consequences for recusing themselves, but “the person who is recusing himself or herself shall take all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.”  Apparently, then, the person recusing themselves is responsible for being sure that somebody else who is willing to perform their duty is available to do so when the service is needed.  This provision is undoubtedly intended to shield the state from liability for refusing to provide a service that same-sex couples have a constitutional right to receive.

The law also relieves people who officiate at weddings from any obligation to perform ceremonies in violation of their sincerely held religious or moral beliefs about the invalidity of same-sex marriages. This presumably would include refusing to officiate if one of the prospective spouses is transgender and that raises religious or moral objections for the officiant because of their lack of belief in the reality of the individual’s gender identity.  OF course, such protection is completely superfluous, since nobody would seriously contend that the government can compel clergy to perform services.

The “discriminatory action” that the government is not allowed to take against people holding and acting on these beliefs goes far beyond taxes to encompass any state benefit, license, certification, accreditation, custody award or agreement, and on and on and on. The list seems to anticipate the variety of cases that have arisen around the country over the past few years in which people have suffered adverse consequences because of their religious objections to homosexuality or same-sex marriage.  For example, some people have been expelled from graduate counseling programs for refusing to provide non-judgmental counseling to gay clients, and such expulsions would clearly be prohibited by this law.  The law would also forbid denying government employment to anybody because of these sincerely held religious beliefs by the prospective employee.

The practical effect is to say that married same-sex couples can be denied a host of benefits and entitlements under a variety of programs, in blatant violation of the Supreme Court’s decision in Obergefell. Ironically, this law was enacted just days after a federal district judge in Mississippi ruled that the state’s ban on adoption of children by same-sex married couples violates the 14th Amendment in light of Obergefell.   And the law erects a structure somewhat akin to apartheid around same-sex marriages.

The measure seems clearly unconstitutional under the Establishment Clause of the 1st Amendment, since it exalts and privileges particular religious beliefs and those who hold them for “special rights.”  On the other hand, some of the law is “merely” symbolic for several reasons.  First, since neither Mississippi nor any of its political subdivisions expressly outlaws discrimination in employment, housing or public accommodations because of sexual orientation or gender identity, people or businesses acting to deny goods, services or accommodations to LGBT people and same-sex couples could do so freely without any consequence under state law before this measure was enacted.  Second, due to the Supremacy Clause of the federal constitution, federal constitutional and statutory rights take priority over state law.

Thus, for example, under Title IX of the U.S. Education Amendments Act as interpreted by the U.S. Department of Education, educational institutions in Mississippi that receive federal money (which would be just about all of them) may not discriminate against transgender individuals because of their gender identity, and under Title VII of the Civil Rights Act of 1964 as interpreted by the Equal Employment Opportunity Commission and the U.S. Department of Justice, employers in Mississippi may not discrimination because of sexual orientation or gender identity.

And, of course, as a federal court ruled days earlier, state policies denying equal rights and benefits to married same-sex couples can be challenged under the 14th Amendment’s Equal Protection Clause.

The main question now is who will file for the first lawsuit to challenge this travesty. Robbie Kaplan, the fearless slayer of DOMA, victorious advocate in the Mississippi marriage equality lawsuit, and representative of the plaintiffs in the same-sex parents adoption case, would be our candidate.

Federal Court Applies U.S. v. Windsor Retroactively to Allow Lesbian Widow to Seek Pension Benefit

Posted on: January 11th, 2016 by Art Leonard No Comments

U.S. District Judge Phyllis J. Hamilton ruled on January 4 in Schuett v. FedEx Corporation, 2015 U.S. Dist. LEXIS 244, 2015 WL 39890 (N.D. Cal.), that the Supreme Court’s 2013 decision in U.S. v. Windsor, striking down Section 3, a key provision of the Defense of Marriage Act (DOMA), could be applied retroactively to allow Stacey Schuett, a lesbian widow, to sue her late spouse’s employer for a survivor annuity.  Although the judge rejected a claim that the lawsuit could be brought directly under the company’s pension plan or as a breach of fiduciary duty action against the plan’s administrators, she accepted the argument that the plan could be sued for violating the Employee Retirement Income Security Act (ERISA) by failing to authorize the annuity for the plaintiff.

The story is complicated.  This account is based on what Stacey Schuett alleged in her complaint, as summarized by Judge Hamilton.

Schuett lived together in a committed relationship for 27 years with Lesly Taboada-Hall, who passed away from cancer on June 20, 2013, just a week before the Supreme Court’s momentous June 26 decisions rejecting an appeal of the federal court ruling that struck down California Proposition 8 and striking down Section 3 of DOMA.  For almost the entire length of their relationship, Taboada-Hall had been employed by Federal Express (FedEx), and she was a fully-vested participant in the FedEx Pension Plan.

As required by ERISA, the plan states that if an employee with a vested pension dies before retiring, their surviving spouse is eligible to receive a “qualified joint and survivor annuity” for the rest of their life.  The written pension plan uses the federal definition of spouse, directly referring to Section 3 of DOMA, which defined a spouse as “a person of the opposite sex who is a husband or wife.”  This is the definition that the Supreme Court declared unconstitutional on June 26, 2013.

Ms. Taboada-Hall was diagnosed with cancer in February, 2010, and as her condition worsened she took a medical leave of absence from FedEx in November 2012.  In February 2013, facing the fact that she would not be able to resume working, she contacted a FedEx human resources representative about her pension and other employee benefits, since she was eligible for early retirement under the terms of the pension plan.  The representative advised her not to retire, since she could continue on medical leave and have her medical expenses covered under the FedEx employee benefits plan.  She was asked about her other benefits, and was advised to name Schuett as her sole beneficiary on the other plans.  She also asked whether Schuett would get the “defined pension benefit” to which Taboada-Hall would be entitled, if Taboada-Hall died before retiring.  The representative said he did not know the answer to that and said “ask someone else.”

On June 3, 2013, the doctor advised that Taboada-Hall was terminal and did not have long to live.  Schuett and Taboada-Hall looked again through the benefits package, and noticed that the plan defined “spouse” with reference to DOMA.  Between June 3 and June 13, they had several conversations with FedEx human resources personnel trying to find out what would happen to Taboada-Hall’s benefits, and on June 13 they received the answer: Schuett would not receive a surviving spouse benefit because only opposite-sex partners could be recognized under the plan.

They quickly arranged with a Sonoma County Supervisor to come to their home and perform a civil marriage ceremony, even though they could not get a marriage license because Proposition 8 was still in effect.  The ceremony was witnessed by friends and family members on June 19. The next day Taboada-Hall died, and six days later Prop 8 and DOMA were declared unconstitutional.

What to do next?  Two days after the Prop 8 decision, the 9th Circuit Court of Appeals lifted its stay and Judge Vaughan Walker’s 2010 ruling holding Prop 8 unconstitutional went into effect.  Of course, the logical implication of the Supreme Court’s decision that the proponents of Prop 8 did not have standing to appeal Judge Walker’s decision was that Walker’s ruling should have been in effect from the summer of 2010 when it was issued, so by rights Taboada-Hall and Schuett should have been able to get a marriage license at any time since then.  Furthermore, the logical implication of the DOMA decision was that the federal definition of marriage was unconstitutional from the date it was enacted in 1996.

Schuett went into Sonoma County Superior Court on August 6, 2013, filing a Petition to Establish the Fact, Date, and Place of Marriage, contending that the June 19 marriage should be retroactively validated.  That court agreed, ruling on September 18, 2013, that the marriage was valid as of June 19, 2013, issuing a delayed certificate of marriage carrying that date.  This means that Schuett was a surviving widow when Taboada-Hall died on June 20, and thus she should be entitled to be treated as a surviving spouse by FedEx.

But not so fast!  FedEx turned her down for the benefit, arguing that eligibility depended on the terms of the written plan, which was limited to surviving different-sex spouses.  In Schuett’s federal lawsuit against FedEx for the benefit, Judge Hamilton agreed with FedEx that Schuett could not sue for the benefit directly, since only beneficiaries under a plan can sue for benefits and under the terms of the written plan she was not a beneficiary.  Furthermore, Judge Hamilton agreed with FedEx that the administrators of the plan had not violated their fiduciary duty, which required them to follow a reasonable interpretation of the written plan’s terms.  The judge granted FedEx’s motion to dismiss Schuett’s claims under these two legal theories.

However, plan administrators are required to administer plans “in accordance with applicable law,” wrote Judge Hamilton.  ERISA provides that a plan must provide an annuity benefit to the spouse of an employee who has a fully vested pension benefit but dies before they have retired and begun to receive retirement benefits.  Schuett argued that since California recognized her as being married on June 19, 2013, the day before Taboada-Hall died, she should be considered a surviving spouse for purposes of this ERISA provision.  She pointed out that in the Windsor case, the Supreme Court not only declared DOMA unconstitutional but also ordered that the federal government refund with interest the money Edie Windsor had paid to cover estate taxes of her wife, Thea Speyer, which would not have been due if the federal government recognized their Canadian marriage.  Thus, the ruling in Windsor was itself retroactive.

Judge Hamilton accepted Schuett’s argument, finding that “ERISA requires a fiduciary to follow plan documents insofar as such documents are consistent with Title I of ERISA.  ERISA requires defined benefit plans such as the Plan at issue to provide a qualified preretirement survivor annuity to all married participants who are vested and die before the annuity starting date, unless the participant has waived the benefit and the spouse consented to the waiver.”  Furthermore, the Department of Labor had issued a “guidance” document making clear that “ERISA’s mandatory benefits provisions apply to all spouses, including same-sex spouses.”

Among the cases Judge Hamilton relied upon were Cozen O’Connor P.C. v. Tobits, 2013 U.S. Dist. LEXIS 105507, 2013 WL 3878688 (E.D. Pa. 2013), specifically on an ERISA survivor benefits claim involving a same-sex couple, and Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993), on retroactivity when the Supreme Court announces a new rule of federal law and applies it retroactively to the parties in the case.

Hamilton found that the Windsor decision “appears to invalidate Section 3 of DOMA retroactive to 1996, the date of enactment.  Notably, the decision in Windsor applied retroactively.”

“In the present case,” she wrote, “although California denied recognition of the term ‘spouse’ to same-sex couples at the time of Ms. Taboada-Hall’s death on June 20, 2013, the Sonoma County Superior Court determined that plaintiff and Ms. Taboada-Hall were married on June 19, 2013, and issued a delayed marriage certificate. . .  [T]his court defers to the California court’s certification of the marriage. . .  The court finds that plaintiff has adequately alleged that FedEx has violated Title I of ERISA by acting contrary to applicable federal law and failing to provide plaintiff with a benefit mandated by ERISA, and that she is entitled to pursue equitable relief to remedy that violation.”  She concluded on this point that she was not persuaded “under the facts alleged in the complaint that there is any basis for denying retroactive application of Windsor.” Thus, Judge Hamilton denied FedEx’s motion to dismiss Schuett’s claim under the ERISA violation theory.

Stacey Schuett is represented by Nina Rachel Wasow, an attorney with Feinberg, Jackson, Worthman & Wasow (Oakland); Amy Whelan, Christopher Francis Stoll, and Shannon Minter of the National Center for Lesbian Rights (San Francisco); Julie Wilensky of Civil Rights Education & Enforcement Center (Berkeley); and Tate A. Birnie (Sebastopol).  FedEx used in-house counsel to litigate its motion to dismiss, but would probably retain outside counsel if it seeks to appeal this ruling to the 9th Circuit.  Since the FedEx plan administrators are under a fiduciary duty not to pay out any benefits that are not required by the plan or the law, they might conclude that they have to appeal this ruling, although the pragmatic approach could be to avoid the costs of litigation and grant Schuett’s claim for the annuity.  Of course, it is also open to Schuett to appeal the court’s order dismissing her claim on the other legal theories.

Judith Kaye, a champion of lesbian & gay rights, dies at 77

Posted on: January 11th, 2016 by Art Leonard No Comments

Retired Chief Judge Judith Kaye of the New York Court of Appeals died on January 7, 2016, at age 77.  Most accounts of her passing mentioned her dissenting opinion in the case of Hernandez v. Robles, 7 N.Y.3d 338 (2006), the case in which the state’s highest court voted against the claim that same-sex couples have a constitutional right to marry, as one of her most notable opinions, but this was merely the capstone of a long career on the court during which Judge Kaye spoke out eloquently many times in cases important for the rights of gay people and people affected by the AIDS epidemic.

Governor Mario Cuomo appointed Kaye to the court early in his first term in 1983, and then elevated her to the position of Chief Judge in 1993.  She retired due to a state constitutional age limit at the end of 2008.  As of her retirement, she was the longest-serving judge in the Court of Appeals’ history, as well as the longest serving Chief Judge and the first woman to sit on the court and to sit as its chief.  Her appointment was a bit controversial, since she had no prior judicial experience when she was appointed, having worked as a corporate and litigation lawyer in private practice for most of her career, but she quickly assumed a leading role on the court, especially as a defender of civil rights and minority rights.

She joined the majority of the court in 1989 in a historic ruling, Braschi v. Stahl Associates Company, 74 N.Y.2d 201, which for the first time in American law recognized cohabiting same-sex couples as members of each other’s family for purposes of the state’s Rent Control Law, thus protecting the right of a surviving same-sex partner to take over the lease although the apartment had been rented in the name of the deceased partner.  Following up on this important ruling, Judge Kaye wrote the opinion for the court in 1993, Rent Stabilization Association of New York v. Higgins, 83 N.Y.2d 156, which upheld the New York Division of Housing and Community Renewal’s regulations that extended the Braschi ruling to the far larger rent stabilization system.  DHCR had specifically noted the impact of the AIDS epidemic on the housing security of gay men as a justification for the regulation. Judge Kaye rejected the plaintiff’s argument that extending protection to non-traditional families through an administrative regulation was an impermissible legislative act by the agency, and she also rejected the argument that extending this protection had unconstitutionally deprived the owners of property rights.

In 1991, Judge Kaye penned an important dissenting opinion in the case of Alison D. v. Virginia M., 77 N.Y.2d 651, when the court ruled that a lesbian co-parent of a child was a “legal stranger” who could not seek court-ordered visitation rights after separating from the child’s birth mother.  The court rested its ruling on the formal language of New York’s antiquated Domestic Relations Law, which even today adheres to a vision of families that fails to reflect reality.  Kaye criticized the court for exalting legal formality above a central purpose of family law: protecting the best interests of children.  “The majority’s retreat from the courts’ proper role — its tightening of rules that should in visitation petitions, above all, retain the capacity to take the children’s interests into account — compels this dissent,” she wrote.  The judge argued that a provision of the law requiring the court to take the best interest of children into account should take priority, and that the formal legal definition of a parent should not stand in the way in situations where a person had been an actual parent to a child in a relationship that had been fostered and encouraged by the child’s legal parent.

On the same date as the Alison D. ruling, Judge Kaye joined the majority in an important ruling upholding a determination by the state’s Public Health Council not to list HIV infection as a condition requiring mandatory testing and contact tracing.  The Council was concerned that such a listing would prevent infected persons from cooperating with public health officials and impose a barrier to addressing the HIV epidemic.  The New York State Society of Surgeons had challenged this decision, but the court held that the Council’s ruling had a rational basis and would not be second-guessed by the court.  N.Y. State Society of Surgeons v. Axelrod, 77 N.Y.2d 677 (1991).

Judge Kaye wrote for the court in 1995 in a sharply-divided 4-3 ruling, Matter of Jacob, 86 N.Y.2d 651, creatively interpreting the state’s antiquated adoption statute so as to allow for second-parent adoptions.  This was a crucially important follow-up to the Alison D. ruling.  Since the Court of Appeals considered same-sex coparents to be “legal strangers,” the only way they could protect the relationship with their children would be if they could adopt them, with the permission of their partner.  Literally interpreted, the adoption statute would require that the child’s birth parent relinquish her parental rights upon adoption by a person to whom she was not married.  But Judge Kaye found that this would violate the statute’s overall purpose: the child’s best interest.  “This policy would certainly be advanced in situations like those presented here by allowing the two adults who actually function as a child’s parents to become the child’s legal parents,” she wrote.

After listing all the practical reasons why allowing a second-parent adoption would make sense, Judge Kaye cut to the heart of the matter.  “Even more important,” she wrote, “is the emotional security of knowing that in the event of the biological parent’s death or disability, the other parent will have presumptive custody, and the children’s relationship with their parents, siblings and other relatives will continue should the coparents separate.  Indeed, viewed from the children’s perspective, permitting the adoptions allows the children to achieve a measure of permanency with both parent figures and voids the sort of disruptive visitation battle we faced in Matter of Alison D. v. Virginia M.”

A year later, Judge Kaye provided the crucial vote in a 4-3 decision holding that a dentist’s office is a place of public accommodation, so a dentist would be in violation of the Human Rights Law for refusing treatment in his office to patients the dentist knew or suspected to have HIV infection.  Cahill v. Rosa, 89 N.Y.2d 14 (1996).

In 2001, Judge Kaye joined with the majority in Levin v. Yeshiva University, 96 N.Y.2d 484, ruling that the trial court had wrongly dismissed a sexual orientation discrimination complaint under the New York City Human Rights Law brought against Yeshiva’s Albert Einstein College of Medicine for refusing to allow two lesbian medical students to live with their same-sex partners in housing provided near the campus for married students.  The case arose before the state legislature had added sexual orientation to the state’s Human Rights Law, and a majority of the court rejected the plaintiffs’ argument that the College had violated the state law’s ban on marital status discrimination, but the court accepted the argument that because the state did not let same-sex couples marry, it was discriminatory on grounds of sexual orientation covered by the city law to refuse an important benefit to same-sex couples.  Judge Kaye would have gone farther than the court, however.  In a partial dissent, she argued that the marital status complaint should not be dismissed either, finding that the court’s earlier recognition in Braschi that same-sex partners could constitute a family should be taken into account.  “At the very least,” she wrote, “it is a question of fact whether plaintiffs’ life partners qualify as members of their ‘immediate families.’  If they do, the State and City Human Rights Laws prohibit [the medical school] from denying them partner housing merely because they are unmarried.  Since discovery and fact finding on this issue are necessary, the lower courts improvidently granted [the school’s] motion to dismiss.”  She pointed out that prior cases interpreted the “marital status” provision in the state law to ban discrimination against somebody because they are “single, married, divorced, separated or the like.”  In this case, she said, the plaintiffs were alleging that they suffered discrimination because they were not married, an obvious violation of the ban on marital status discrimination.

Finally, of course, there is Judge Kaye’s dissent in Hernandez, in which she argued on behalf of herself and Judge Carmen Ciparick that same-sex couples did have a right to marry.  “This State has a proud tradition of affording equal rights to all New Yorkers,” she wrote.  “Sadly, the Court today retreats from that proud tradition.”  After noting the long list of federal and state cases holding that “marriage is a fundamental constitutional right,” she wrote that “fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.  Indeed, in recasting plaintiffs’ invocation of their fundamental right to marry as a request for recognition of a ‘new’ right to same-sex marriage, the Court misapprehends the nature of the liberty interest at stake.”  She pointed to the U.S. Supreme Court’s then-recent decision in Lawrence v. Texas, striking down a state sodomy law and overruling Bowers v. Hardwick, the 1986 decision upholding Georgia’s sodomy law.  In Lawrence, the Court criticized the Bowers decision as failing to apprehend the nature of the liberty interest at stake.  “The same failure is evident here,” wrote Judge Kaye. “An asserted liberty interest is not to be characterized so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to those who now seek to exercise it.”

“Simply put,” she asserted, “fundamental rights are fundamental rights.  They are not defined in terms of who is entitled to exercise them.”  Continuing, she wrote, “The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it.”

Judge Kaye contended that “homosexuals meet the constitutional definition of a suspect class” for purposes of equal protection rights, which would mean that “any classification discriminating on the basis of sexual orientation must be narrowly tailored to meet a compelling state interest.”  She also pointed out that the same-sex marriage ban discriminated on the basis of sex, which would require the court to apply “heightened scrutiny,” under which the policy would be struck down unless it was “substantially related to the achievement of important governmental objectives.”  She concluded that the ban could not survive either test, much less the “rational basis test” that would otherwise apply. She rejected the court’s conclusion that the issue should be left up to the legislature, stating that “this Court cannot avoid its obligation to remedy constitutional violations in the hope that the Legislature might some day render the question presented academic.”  She concluded, “I am confident that future generations will look back on today’s decision as an unfortunate misstep.”

Judge Kaye’s confidence was vindicated over the past several years as scores of courts, many of them citing her dissenting opinion, declared state bans on same-sex marriage unconstitutional, culminating in the Supreme Court’s Obergefell ruling on June 26, 2015.  After New York’s legislature enacted marriage equality in 2011, Judge Kaye happily performed same-sex marriage ceremonies.  Perhaps not so coincidentally, the lead attorney in U.S. v. Windsor, the case that struck down the federal ban on recognizing same-sex marriages in 2013, was Roberta Kaplan, a former law clerk for Judge Kaye whose book about the case describes the important role Judge Kaye played for her as a mentor.  The judge reportedly had several openly-gay clerks, some of whom have themselves become judges.